[Federal Register Volume 79, Number 91 (Monday, May 12, 2014)]
[Notices]
[Pages 27051-27059]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-10502]
[[Page 27051]]
Vol. 79
Monday,
No. 91
May 12, 2014
Part II
Department of the Interior
-----------------------------------------------------------------------
Fish and Wildlife Service
-----------------------------------------------------------------------
Department of Commerce
-----------------------------------------------------------------------
National Oceanic and Atmospheric Administration
-----------------------------------------------------------------------
Policy Regarding Implementation of Section 4(b)(2) of the Endangered
Species Act; Notice; Interagency Cooperation--Endangered Species Act of
1973, as Amended; Definition of Destruction or Adverse Modification of
Critical Habitat; Listing Endangered and Threatened Species and
Designating Critical Habitat; Implementing Changes to the Regulations
for Designating Critical Habitat; Proposed Rules
Federal Register / Vol. 79 , No. 91 / Monday, May 12, 2014 /
Notices
[[Page 27052]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[Docket No. FWS-R9-ES-2011-0104; Docket No. 120206102-336501;
4500030114]
RIN 1018-AX87; 0648-BB82
Policy Regarding Implementation of Section 4(b)(2) of the
Endangered Species Act
AGENCIES: U.S. Fish and Wildlife Service (FWS), Interior; National
Marine Fisheries Service (NMFS), National Oceanic and Atmospheric
Administration, Commerce.
ACTION: Announcement of draft policy and solicitation of public
comment.
-----------------------------------------------------------------------
SUMMARY: We, the U.S Fish and Wildlife Service and the National Marine
Fisheries Service, announce a draft policy on exclusions from critical
habitat under the Endangered Species Act. This draft policy provides
the Services' position on how we consider partnerships and conservation
plans, conservation plans permitted under section 10 of the Act, tribal
lands, national security and homeland security impacts and military
lands, Federal lands, and economic impacts in the exclusion process.
This draft policy is meant to complement the amendments to our
regulations regarding impact analyses of critical habitat designations
and is intended to clarify expectations regarding critical habitat and
provide for a credible, predictable, and simplified critical-habitat-
exclusion process.
DATES: We will accept comments from all interested parties until July
11, 2014. Please note that if you are using the Federal eRulemaking
Portal (see ADDRESSES section below), the deadline for submitting an
electronic comment is 11:59 p.m. Eastern Standard Time on this date.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. In
the Search box enter the Docket number for this proposed policy, which
is FWS-R9-ES-2011-0104. You may enter a comment by clicking on
``Comment Now!.'' Please ensure that you have found the correct
document before submitting your comment.
U.S. mail or hand delivery: Public Comments Processing,
Attn: Docket No. FWS-R9-ES-2011-0104; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, PDM-
2042; Arlington, VA 22203.
We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Request for Information section below for more
information).
FOR FURTHER INFORMATION CONTACT: Douglas Krofta, U.S. Fish and Wildlife
Service, Division of Conservation and Classification, 4401 N Fairfax
Drive, Suite 420, Arlington, VA, 22203, telephone 703/358-2171;
facsimile 703/358-1735; or Marta Nammack, National Marine Fisheries
Service, Office of Protected Resources, 1315 East-West Highway, Silver
Spring, MD 20910, telephone 301/713-1401; facsimile 301/713-0376. If
you use a telecommunications device for the deaf (TDD), call the
Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION: Today, we publish in the Federal Register
three related documents that are now open for public comment. We invite
the public to comment individually on these documents as instructed in
their preambles. This document is one of the three, of which two are
proposed rules and one is a draft policy:
A proposed rule to amend the existing regulations
governing section 7 consultation under the Endangered Species Act to
revise the definition of ``destruction or adverse modification'' of
critical habitat. The current regulatory definition has been
invalidated by several courts for being inconsistent with the language
of the Act. This proposed rule would revise title 50 of the Code of
Federal Regulations (CFR) at part 402. The Regulatory Identifier Number
(RIN) is 1018-AX88, and the proposed rule may be found on http://www.regulations.gov at Docket No. FWS-R9-ES-2011-0072.
A proposed rule to amend existing regulations governing
the designation of critical habitat under section 4 of the Act. A
number of factors, including litigation and the Services' experience
over the years in interpreting and applying the statutory definition of
critical habitat, have highlighted the need to clarify or revise the
current regulations. This proposed rule would revise 50 CFR part 424.
It is published under RIN 1018-AX86 and may be found on http://www.regulations.gov at Docket No. FWS-HQ-ES-2012-0096.
A draft policy pertaining to exclusions from critical
habitat and how we consider partnerships and conservation plans,
conservation plans permitted under section 10 of the Act, tribal lands,
national security and homeland security impacts and military lands,
Federal lands, and economic impacts in the exclusion process. This
policy is meant to complement the proposed revisions to 50 CFR part 424
and to provide for a simplified exclusion process. The policy is
published under RIN 1018-AX87 and may be found on http://www.regulations.gov at Docket No. FWS-R9-ES-2011-0104.
Background
The National Marine Fisheries Service (NMFS) and Fish and Wildlife
Service (FWS) are charged with implementing the Endangered Species Act
of 1973, as amended (16 U.S.C. 1531 et seq.) (Act), the goal of which
is to provide a means to conserve the ecosystems upon which listed
species depend and a program for listed species conservation. Critical
habitat is one tool in the Act that Congress established to achieve
species conservation. In section 3(5)(A) of the Act Congress defined
``critical habitat'' as:
(i) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the provisions of
section 4 of this Act, on which are found those physical or biological
features (I) essential to the conservation of the species and (II)
which may require special management considerations or protection; and
(ii) specific areas outside the geographical area occupied by the
species at the time it is listed in accordance with the provisions of
section 4 of this Act, upon a determination by the Secretary that such
areas are essential for the conservation of the species.
Specifying the geographic location of critical habitat helps
facilitate implementation of section 7(a)(1) by identifying areas where
Federal agencies can focus their conservation programs and utilize
their authorities to further the purposes of the Act. In addition to
serving as a notification tool, the designation of critical habitat
also provides a significant regulatory protection--the requirement that
Federal agencies consult with the Services under section 7(a)(2) to
insure their actions are not likely to destroy or adversely modify
critical habitat.
Section 4 of the Act requires the Services to designate critical
habitat and sets out standards and processes for determining critical
habitat. Congress authorized the Secretaries to ``exclude any area from
critical habitat if [s]he determines that the benefits of exclusion
outweigh the benefits of specifying such
[[Page 27053]]
area as part of the critical habitat, unless he determines, based on
the best scientific and commercial data available, that the failure to
designate such area as critical habitat will result in the extinction
of the species concerned'' (section 4(b)(2)).
Over the years there have been legal challenges to the Services'
process for considering exclusions. Several court decisions have
addressed the Services' implementation of section 4(b)(2). In 2008, the
Solicitor of the Department of the Interior issued a legal opinion on
implementation of section 4(b)(2) (http://www.doi.gov/solicitor/opinions.html). That opinion is based on the text of the Act and
principles of statutory interpretation and relevant case law. The
opinion explained the legal considerations that guide the Secretary's
exclusion authority and discussed and elaborated on the application of
these considerations to the circumstances commonly faced by the
Services (e.g., habitat conservation plans, Tribal lands).
To provide predictability and transparency regarding how the
Services consider exclusions under section 4(b)(2), the Services are
announcing a draft policy on several issues that frequently arise in
the context of exclusions. The draft policy on implementation of
specific aspects of section 4(b)(2) does not cover the entire range of
factors that may be considered as the basis for an exclusion in any
given designation, nor does it serve as a comprehensive interpretation
of all the provisions of section 4(b)(2).
This draft policy, when finalized, will set forth the Services'
position regarding how we consider partnerships and conservation plans,
conservation plans permitted under section 10 of the Act, tribal lands,
national security and homeland security impacts and military lands,
Federal lands, and economic impacts in the exclusion process. The
Services intend to apply this policy when considering exclusions from
critical habitat. That being said, under the terms of the policy as
proposed, the Services retain a great deal of discretion in making
decisions with respect to exclusions from critical habitat.
Implementation of Section 4(b)(2) of the Act
On August 24, 2012 (77 FR 51503) the Services published a proposed
rule to revise 50 CFR 424.19. In that rule the Services proposed to
elaborate on the process and standards for implementing section 4(b)(2)
of the Act. The final rule was published on August 28, 2013 (78 FR
53058). This draft policy is meant to complement those revisions to 50
CFR 424.19 and provides further clarification as to how we will
implement section 4(b)(2) when designating critical habitat.
Section 4(b)(2) of the Act provides that:
The Secretary shall designate critical habitat, and make
revisions thereto, under subsection (a)(3) on the basis of the best
scientific data available and after taking into consideration the
economic impact, the impact on national security, and any other
relevant impact, of specifying any particular area as critical
habitat. The Secretary may exclude any area from critical habitat if
he determines that the benefits of such exclusion outweigh the
benefits of specifying such area as part of the critical habitat,
unless he determines, based on the best scientific and commercial
data available, that the failure to designate such area as critical
habitat will result in the extinction of the species concerned.
In 1982, Congress added this provision to the Act, both to require
the Services to consider the broader impacts of designation of critical
habitat and to provide a means for the Services to ameliorate
potentially negative impacts of designation by excluding, in
appropriate circumstances, particular areas from a designation. The
first sentence of section 4(b)(2) sets out a mandatory requirement that
the Services consider the economic impact, impact on national security,
and any other relevant impacts prior to designating an area as part of
a critical habitat designation. The Services will always consider such
impacts, as required under this sentence, for each and every
designation of critical habitat. Although the term ``homeland
security'' was not in common usage in 1982, the Services acknowledge
that homeland security is fairly embodied within the mandatory
requirement that the Services consider impacts on national security
within the intent and meaning of section 4(b)(2).
The second sentence of section 4(b)(2) outlines a separate,
discretionary process by which the Secretaries may elect to go further
in order to determine whether to exclude such an area from the
designation, by performing an exclusion analysis. The Services use
their compliance with the first sentence of section 4(b)(2), their
consideration of whether to engage in the discretionary exclusion
analysis under the second sentence of section 4(b)(2), and any
exclusion analysis that the Services undertake, as the primary basis
for satisfying the provisions of Executive Orders 12866 and 13563. E.O.
12866 (and incorporated by E.O. 13563) requires agencies to assess the
costs and benefits of a rule, and, to the extent permitted by law, to
propose or adopt the rule only upon a reasoned determination that the
benefits of the intended regulation justify the costs.
Conducting an exclusion analysis under section 4(b)(2) involves
balancing or weighing the benefits of excluding a specific area from a
designation of critical habitat against the benefits of including that
area in the designation. If the benefits of exclusion outweigh the
benefits of inclusion, the Secretaries may exclude the specific area so
long as an explicit determination is made that an exclusion of the
specific area would not result in the extinction of the species
concerned. The discretionary 4(b)(2) exclusion analysis is fully
consistent with the E.O. requirements in that it permits excluding an
area where the benefits of exclusion outweigh the benefits of
inclusion, and not excluding an area when the benefits of exclusion do
not outweigh the benefits of inclusion. This draft policy sets forth
specific categories of information that we often consider when we enter
into the discretionary 4(b)(2) exclusion analysis and exercise the
Secretaries' discretion to exclude areas from critical habitat. We do
not intend to cover in these examples all the categories of information
that may be relevant, or to limit the Secretaries' discretion under
this section to weight the benefits as appropriate.
Moreover, revisions to 50 CFR 424.19 further explain how the
Services clarify the exclusion process for critical habitat and address
statutory changes and case law. The revisions to 50 CFR 424.19 state
that the Secretaries have the discretion to exclude any particular area
from the critical habitat upon a determination that the benefits of
such exclusion outweigh the benefits of specifying the particular area
as part of the critical habitat. Furthermore, the Secretaries may
consider any relevant benefits, and the weight and consideration given
to those benefits is within the discretion of the Secretaries. The
revisions to 50 CFR 424.19 provide the framework for how the Services
intend to implement section 4(b)(2) of the Act. This draft policy
further details the discretion available to the Services (acting for
the Secretaries) and provides detailed examples of how we consider
partnerships and conservation plans, conservation plans permitted under
section 10 of the Act, tribal lands, national security and homeland
security impacts and military lands, Federal lands, and economic
impacts in the exclusion process when we undertake a discretionary
exclusion analysis.
a. The Services' Discretion
The Act affords a great degree of discretion to the Services in
[[Page 27054]]
implementing section 4(b)(2). This discretion is applicable to a number
of aspects of section 4(b)(2). Most significant is that the decision to
exclude is always completely discretionary, as the Act states that the
Secretaries ``may'' exclude areas. In no circumstance is exclusion
required under the second sentence of section 4(b)(2).
It is the general practice of the Services to exercise this
discretion to exclude an area when the benefits of exclusion outweigh
the benefits of inclusion, and not exclude an area when the benefits of
exclusion do not outweigh the benefits of inclusion. In articulating
this general practice, the Services do not intend to limit in any
manner the discretion afforded to the Secretaries by the statute.
b. Private or Other Non-Federal Conservation Plans and Partnerships, in
General
We sometimes exclude specific areas from critical habitat
designations in part based on the existence of private or other non-
Federal conservation plans or partnerships. A conservation plan
describes actions that minimize and/or mitigate impacts to species and
their habitats. Conservation plans can be developed by private entities
with no Service involvement, or in partnership with the Services. In
the case of a habitat conservation plan (HCP), safe harbor agreement
(SHA), or a candidate conservation agreement with assurances (CCAA), a
plan or agreement is developed in partnership with the Services for the
purposes of attaining a permit under section 10 of the Act. See
paragraph C, below, for a discussion of HCPs, SHAs, and CCAAs.
In determining how the benefits of exclusion and the benefits of
inclusion are affected by the existence of private or other non-Federal
conservation plans and partnerships, when we undertake a discretionary
exclusion analysis, we evaluate a variety of factors. These factors
include:
(i) The degree to which the record supports a conclusion that a
critical habitat designation would impair the realization of benefits
expected from the plan, agreement, or partnership;
(ii) The extent of public participation in the development of the
conservation plan;
(iii) The degree to which there has been agency review and required
determinations;
(iv) Whether National Environmental Policy Act (NEPA) compliance
was required;
(v) The demonstrated implementation and success of the chosen
mechanism;
(vi) The degree to which the plan or agreement provides for the
conservation of the essential physical or biological features for the
species;
(vii) Whether there is a reasonable expectation that the
conservation management strategies and actions contained in a
management plan or agreement will be implemented; and
(viii) Whether the plan or agreement contains a monitoring program
and adaptive management to ensure that the conservation measures are
effective and can be modified in the future in response to new
information.
Whether a plan or agreement has previously been subject to public
comment, agency review, and NEPA compliance processes are factors that
may indicate the degree of critical analysis the plan or agreement has
already received. These factors influence the Services' determination
of the appropriate weight that should be given in any particular case.
Achieving the conservation benefits of a particular existing plan
is usually not a benefit of exclusion, because we expect such plans to
be implemented and, therefore, those conservation benefits are expected
to occur, regardless of inclusion or exclusion of the covered areas in
critical habitat. Instead, the benefit of excluding from critical
habitat a specific area covered by an existing plan is typically the
maintenance of an existing partnership or the potential for creation of
new conservation partnerships with the plan's signatories or other
parties. On the other hand, the conservation benefits of a particular
existing plan, agreement, or partnership may serve to reduce the
benefits of including in critical habitat a specific area that is
covered by an existing plan. The benefits of inclusion in critical
habitat include that amount of conservation of the species habitat
provided by the designation of critical habitat above the baseline
(i.e., above the conservation benefits from listing of the species or
other measures not dependent on this designation of critical habitat).
Where there is an existing plan, that plan (and the conservation
benefits it provides) may appropriately be included in the baseline.
Therefore, to the extent the plan provides some protection for the
species' habitat that would to some degree be duplicated by designating
the area at issue as critical habitat, the benefits of inclusion of
that area covered by the plan are reduced.
c. Private or Other Non-Federal Conservation Plans Related to Permits
Under Section 10 of the Act
Habitat conservation plans (HCPs) for incidental take permits under
section 10(a)(1)(B) of the Act provide for partnerships with non-
Federal entities to minimize and mitigate impacts to listed species and
their habitat. In most cases HCP permittees agree to do more for the
conservation of the species and their habitats on private lands than
designation of critical habitat would provide alone. We place great
value on the partnerships that are developed during the preparation and
implementation of HCPs.
Candidate conservation agreements with assurances (CCAAs) and safe
harbor agreements (SHAs) are voluntary agreements designed to conserve
candidate and listed species, respectively, on non-Federal lands. In
exchange for actions that contribute to the conservation of species on
non-Federal lands, participating property owners are covered by an
enhancement of survival permit under section 10(a)(1)(A) of the Act,
which authorizes incidental take of the covered species that may result
from implementation of conservation actions, specific land uses, and
return to baseline under the agreements. The Services also provide
enrollees assurances that we will not impose further land-, water-, or
resource-use restrictions or additional commitments of land, water, or
finances beyond those agreed to in the agreements.
When we undertake a discretionary exclusion analysis, we will
always consider areas covered by an approved CCAA/SHA/HCP, and
generally exclude such areas from a designation of critical habitat if
three conditions are met:
(1) The permittee is properly implementing the CCAA/SHA/HCP and is
expected to continue to do so for the term of the agreement. A CCAA/
SHA/HCP is properly implemented if the permittee is and has been fully
implementing the commitments and provisions in the CCAA/SHA/HCP,
Implementing Agreement, and permit.
(2) The species for which critical habitat is being designated is a
covered species in the CCAA/SHA/HCP, or very similar in its habitat
requirements to a covered species. The recognition that the Services
extend to such an agreement depends on the degree to which the
conservation measures undertaken in the CCAA/SHA/HCP would also protect
the habitat features of the similar species.
(3) The CCAA/SHA/HCP specifically addresses that species' habitat
(and does
[[Page 27055]]
not just provide guidelines) and meets the conservation needs of the
species in the planning area.
We will undertake a case-by-case analysis to determine whether these
conditions are met and, as with other conservation plans, whether the
benefits of exclusion outweigh the benefits of inclusion.
The benefits of excluding lands with CCAAs, SHAs, or properly
implemented HCPs that have been permitted under section 10 of the Act
from critical habitat designation include relieving landowners,
communities, and counties of any potential additional regulatory burden
that might be imposed as a result of the critical habitat designation.
A related benefit of exclusion is the unhindered, continued ability to
maintain existing partnerships and seek new partnerships with potential
plan participants, including States, counties, local jurisdictions,
conservation organizations, and private landowners. Together, these
entities can implement conservation actions that the Services would be
unable to accomplish without private landowners. These partnerships can
lead to additional CCAAs, SHAs, and HCPs. This is particularly
important because HCPs often cover a wide range of species, including
listed plant species (for which there is no general take prohibition
under section 9 of the Act) and species that are not state or federally
listed (which do not receive the Act's protections). Neither of these
categories of species may receive much protection from development in
the absence of HCPs.
As is the case with conservation plans generally, the protection
that a CCAA, SHA, or HCP provides to habitat can reduce the benefits of
including the area covered by a CCAA, SHA, or HCP in the designation.
With specific regard to HCPs, because the Services generally approve
HCPs on the basis of their efficacy to minimize and mitigate impacts to
listed species and their habitat, these plans tend to be very effective
at reducing those benefits of inclusion. Nonetheless, HCPs often are
written with the understanding that some of the covered area will be
developed, and the associated permit provides authorization of
incidental take caused by that development (although a properly
designed HCP will tend to steer development toward the least
biologically important habitat). Thus, designation of the areas
specified for development that meet the definition of ``critical
habitat'' may still conceivably provide a conservation benefit to the
species. In addition, if activities not covered by the HCP are
affecting or may affect an area that is identified as critical habitat,
then the benefits of inclusion of that specific area may be relatively
high because additional conservation benefits may be realized by the
designation of critical habitat in that area. In any case, the Services
will weigh whatever benefits of inclusion there are against the
benefits of exclusion (usually the fostering of partnerships that may
result in future conservation actions).
For CCAAs, SHAs, and HCPs that are still under development, when we
undertake a discretionary exclusion analysis, we generally will not
exclude those areas from a designation of critical habitat. If a CCAA,
SHA, or HCP is close to being approved, we will evaluate these draft
plans under the framework of general plans and partnerships (subsection
b, above). In other words, we will consider factors such as
partnerships that have been developed during the preparation of draft
CCAAs, SHAs, and HCPs and broad public benefits such as encouraging the
continuation of current and development of future conservation efforts
with non-Federal partners, and consider these factors as possible
benefits of exclusion. However, promises of future conservation actions
in draft CCAAs, SHAs, and HCPs will be given little weight in the
discretionary exclusion analysis, even if they may directly benefit the
species for which a critical habitat designation is proposed.
d. Tribal Lands
There are several Executive Orders, Secretarial Orders, and
policies that relate to working with tribes. These guidance documents
generally confirm our trust responsibilities to Tribes, recognize that
Tribes have sovereign authority to control Tribal lands, emphasize the
importance of developing partnerships with Tribal governments, and
direct the Services to consult with Tribes on a government-to-
government basis.
A joint Secretarial Order that applies to both FWS and NMFS,
Secretarial Order 3206, American Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the Endangered Species Act (June 5, 1997)
(S.O. 3206), is the most comprehensive of the various guidance
documents related to Tribal relationships and ESA implementation, and
it provides the most detail directly relevant to the designation of
critical habitat. In addition to the general direction discussed above,
S.O. 3206 explicitly recognizes the right of Tribes to participate
fully in the listing process, including designation of critical
habitat. The Order also states: ``Critical habitat shall not be
designated in such areas unless it is determined essential to conserve
a listed species. In designating critical habitat, the Services shall
evaluate and document the extent to which the conservation needs of the
listed species can be achieved by limiting the designation to other
lands.'' In light of this instruction, when we undertake a
discretionary exclusion analysis we will always consider exclusions of
Tribal lands under section 4(b)(2) of the Act prior to finalizing a
designation of critical habitat and will give great weight to Tribal
concerns in analyzing the benefits of exclusion.
However, S.O. 3206 does not preclude us from designating Tribal
lands or waters as critical habitat nor does it state that Tribal lands
or waters cannot meet the Act's definition of ``critical habitat.'' We
are directed by the Act to identify areas that meet the definition of
``critical habitat,'' (i.e., occupied lands that contain the essential
physical or biological features that may require special management or
protection and identification of unoccupied areas that are essential to
the conservation of a species) without regard to landownership. While
S.O. 3206 provides important direction, it expressly states that it
does not modify the Departments' statutory authority.
e. Impacts on National Security and Homeland Security
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)), as
revised in 2003 provides: ``The Secretary shall not designate as
critical habitat any lands or other geographical areas owned or
controlled by the Department of Defense [DoD], or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act Improvement Act of
1997 (Sikes Act) (16 U.S.C. 670a), if the Secretary determines in
writing that such plan provides a benefit to the species for which
critical habitat is proposed for designation.'' In other words, as
articulated in the proposed rule revising 50 CFR 424.12(h) published
elsewhere in today's edition of the Federal Register, if the Services
conclude that an INRMP ``provides a benefit'' to the species, the area
covered is ineligible for designation. Thus that area cannot be
designated as critical habitat.
Section 4(a)(3)(B)(i) of the Act, however, may not cover all DoD
lands or areas that pose potential national security concerns (e.g., a
DoD installation that is in the process of revising its integrated
natural resources management plan). If a particular area is
[[Page 27056]]
not covered under section 4(a)(3)(B)(i), national security or homeland-
security concerns are not a factor in the process of determining what
areas meet the definition of ``critical habitat.'' Nevertheless, when
designating critical habitat under section 4(b)(2), the Secretaries
must consider impacts on national security, including homeland
security, on DoD lands or areas ineligible for consideration under
section 4(a)(3)(B)(i). Accordingly, we will always consider for
exclusion from the designation areas for which DoD, DHS, or another
Federal agency has requested exclusion based on an assertion of
national security or homeland-security concerns.
We cannot, however, automatically exclude requested areas. When
DoD, DHS, or another Federal agency requests exclusion from critical
habitat on the basis of national-security or homeland-security impacts,
it must provide a specific justification. Such justification could
include demonstration of probable impacts, such as impacts to ongoing
border security patrols and surveillance activities, or a delay in
training or facility construction, as a result of compliance with
section 7(a)(2) of the Act. If the agency requesting the exclusion does
not provide us with a specific justification, we will contact the
agency to recommend that it provide a specific justification. If the
agency provides a specific justification, we will defer to the expert
judgment of DoD, DHS, or another Federal agency as to: (1) Whether
activities on its lands or waters, or its activities on other lands or
waters, have national-security or homeland-security implications; and
(2) the importance of those implications. In that circumstance, in
conducting a discretionary exclusion analysis, we will give great
weight to national-security and homeland security concerns in analyzing
the benefits of exclusion.
f. Federal Lands
We recognize that we have obligations to consider the impacts of
designation of critical habitat on Federal lands under the first
sentence of section 4(b)(2) and under E.O. 12866. However, as mentioned
above, the Services have broad discretion under the second sentence of
4(b)(2) on how to weigh those impacts. In particular, ``[t]he
consideration and weight given to any particular impact is completely
within the Secretary's discretion.'' H.R. Rep. No. 95-1625, at 17
(1978). In considering how to exercise this broad discretion, we are
mindful that Federal land managers have unique obligations under the
Act. First, Congress declared that it was its policy that ``all Federal
departments and agencies shall seek to conserve endangered species and
threatened species and shall utilize their authorities in furtherance
of the purposes of this Act.'' Section 2(c)(1). Second, all Federal
agencies have responsibilities under section 7 of the Act to carry out
programs for the conservation of listed species and to ensure their
actions are not likely to jeopardize the continued existence of listed
species or result in the destruction or adverse modification of
critical habitat.
We also note that, while the benefits of excluding non-Federal
lands include development of new conservation partnerships and
fostering existing partnerships, those benefits do not generally arise
with respect to Federal lands, because of the independent obligations
of Federal agencies under section 7 of the Act. Conversely, the
benefits of including Federal lands in a designation are greater than
non-Federal lands because there is a Federal nexus for any project on
Federal lands that may affect critical habitat, so section 7
consultation would be triggered and an analysis under the destruction
and adverse-modification standard would always be conducted.
Under the Act, the only direct consequence of critical habitat
designation is to require Federal agencies to ensure, through section 7
consultation, that any action they fund, authorize, or carry out does
not destroy or adversely modify designated critical habitat. The costs
that this requirement may impose on Federal agencies can be divided
into two types: The additional administrative or transactional costs
associated with the consultation process, and the costs to Federal
agencies and other affected parties, including applicants for Federal
permits, of any project modifications necessary to avoid adverse
impacts to critical habitat. Consistent with the unique obligations
that Congress created for Federal agencies in conserving endangered and
threatened species, we generally will not consider avoiding the
administrative or transactional costs associated with the section 7
consultation process to be a ``benefit'' of excluding a particular area
from a critical habitat designation in any discretionary exclusion
analysis. We will, however, consider the extent to which such
consultation would produce an outcome that has economic or other
impacts, such as by requiring project modifications and additional
conservation measures by the Federal agency or other affected parties.
Lands owned by the Federal government should be prioritized as
sources of support in the recovery of listed species. To the extent
possible, we will focus designation of critical habitat on Federal
lands in an effort to avoid the real or perceived regulatory burdens on
non-Federal lands. We do greatly value the partnership of other Federal
agencies in the conservation of listed and non-listed species. However,
for the reasons listed above, we will focus our exclusions on non-
Federal lands. Circumstances where we determine that the benefits of
excluding Federal lands outweigh the benefits of not doing so are most
likely when national security or homeland-security concerns are
present.
g. Economic Impacts
The first sentence of section 4(b)(2) of the ESA requires the
Services to consider the economic impacts (as well as the impacts on
national security and any other relevant impacts) of designating
critical habitat. In addition, economic impacts may for some particular
areas play an important role in the discretionary exclusion analysis
under the second sentence of section 4(b)(2). In both contexts, the
Services will consider the probable incremental economic impacts of the
designation. When the Services undertake a discretionary exclusion
analysis with respect to a particular area, they will weigh the
economic benefits of exclusion (and any other benefits of exclusion)
against any benefits of inclusion (primarily the conservation value of
designating the area). The conservation value may be influenced by the
level of effort needed to manage degraded habitat to the point where it
could support the listed species. The Services will use their
discretion in determining how to weigh probable incremental economic
impacts against conservation value. It is the nature of the probable
incremental economic impacts, not necessarily a particular threshold
level, that triggers considerations of exclusions based on probable
incremental economic impacts. For example, if an economic analysis
indicates high probable incremental impacts in a proposed critical
habitat unit of low conservation value (relative to the remainder of
the designation), the Services may consider exclusion of that
particular unit.
Draft Policy on Implementation of Section 4(b)(2) of the Act
1. The decision to exclude any specific area from a designation of
critical habitat is always discretionary, as the Act states that the
Secretaries
[[Page 27057]]
``may''' exclude any area. In no circumstances is an exclusion of any
specific area required by the Act.
2. When we undertake a discretionary exclusion analysis, we will
evaluate the effect of conservation plans and partnerships on the
benefits of inclusion and the benefits of exclusion of any particular
area from critical habitat by considering a number of factors
including:
a. The degree to which the record supports a conclusion that a
critical habitat designation would impair the realization of benefits
expected from the plan, agreement, or partnership.
b. The extent of public participation in the development of the
conservation plan.
c. The degree to which there has been agency review and required
determinations.
d. Whether National Environmental Policy Act (NEPA) compliance was
required.
e. The demonstrated implementation and success of the chosen
mechanism.
f. The degree to which the plan or agreement provides for the
conservation of the essential physical or biological features for the
species.
g. Whether there is a reasonable expectation that the conservation
management strategies and actions contained in the management plan or
agreement will be implemented.
h. Whether the plan or agreement contains a monitoring program and
adaptive management to ensure that the conservation measures are
effective and can be modified in the future in response to new
information.
3. When we undertake a discretionary exclusion analysis, we will
always consider areas covered by a permitted CCAA, SHA, or HCP, and
generally exclude such areas from a designation of critical habitat if
incidental take caused by the activities in those areas is covered by a
permit under section 10 of the Act and the CCAA/SHA/HCP meets the
following conditions:
a. The permittee is properly implementing the CCAA/SHA/HCP and is
expected to continue to do so for the term of the agreement. A CCAA/
SHA/HCP is properly implemented if the permittee is and has been fully
implementing the commitments and provisions in the HCP, Implementing
Agreement, and permit.
b. The species for which critical habitat is being designated is a
covered species in the CCAA/SHA/HCP, or very similar in its habitat
requirements to a covered species. The recognition that the Services
extend to such an agreement depends on the degree to which the
conservation measures undertaken in the CCAA/SHA/HCP would also protect
the habitat features of the similar species.
c. The CCAA/SHA/HCP specifically addresses that species' habitat
(not just providing guidelines) and meets the conservation needs of the
species in the planning area.
We generally will not rely on CCAAs/SHAs/HCPs that are still under
development as the basis of exclusion from a designation of critical
habitat.
4. When we undertake a discretionary exclusion analysis, we will
always consider exclusion of Tribal lands, and give great weight to
Tribal concerns in analyzing the benefits of exclusion. However, Tribal
concerns are not a factor in determining what areas, in the first
instance, meet the definition of ``critical habitat.''
5. When we undertake a discretionary exclusion analysis, we will
always consider exclusion of areas for which a Federal agency has
requested exclusion based on an assertion of national-security or
homeland-security concerns, and give great weight to national-security
or homeland-security concerns in analyzing the benefits of exclusion.
National-security and or homeland-security concerns are not a factor,
however, in the process of determining what areas, in the first
instance, meet the definition of ``critical habitat.''
6. Except in the circumstances described in 5 above, we will focus
our exclusions on non-Federal lands. Because all actions on Federal
lands are subject to the requirements of Section 7(a)(2) of the Act,
the benefits of designating Federal lands as critical habitat are
always present and are typically greater than the benefits of not
designating Federal lands or of designating other lands.
7. When the Services are determining whether to undertake a
discretionary exclusion analysis as a result of the probable
incremental economic impacts of designating a particular area, it is
the nature of those impacts, not necessarily a particular threshold
level, that is relevant to the Services' determination.
8. For any area to be excluded, we must find that the benefits of
excluding that area outweigh the benefits of including that area in the
designation. We must not exclude an area if the failure to designate it
will result in the extinction of the species.
Request for Information
We intend that a final policy will consider information and
recommendations from all interested parties. We, therefore, solicit
comments, information, and recommendations from governmental agencies,
Indian Tribes, the scientific community, industry groups, environmental
interest groups, and any other interested parties. All comments and
materials received by the date listed above in DATES will be considered
prior to the approval of a final document.
If you submit information via http://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the Web site. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on http://www.regulations.gov.
We seek comments and recommendations in particular on:
1. Whether this policy sets out clearly defined expectations
regarding critical habitat and the exclusion process. If not, please
provide detailed comments so we can clarify our draft policy.
2. Whether this draft policy provides enough or too little detail
regarding how the Services will consider and conduct the discretionary
4(b)(2) exclusion analysis for each of the categories described in this
draft policy.
3. Whether, in general, there may be other factors or
considerations that we should evaluate when considering exclusions from
critical habitat.
4. Regarding consideration of conservation plans and partnerships,
whether our draft policy appropriately characterizes the importance of
partnerships relative to the conservation benefits of a plan or
partnership.
5. Regarding habitat conservation plans (HCPs), whether our draft
policy works for large-scale regional plans as well as smaller project-
specific plans
6. Relative to our consideration for Tribal lands, whether our
draft policy provides clearly defined expectations and appropriate
consideration of Tribal sovereignty. If not, please describe in detail
how we could improve this consideration.
7. Whether our consideration of impacts to national security and
homeland security accurately captures our responsibilities under the
Act and the Sikes Act (16 U.S.C. 670a).
Required Determinations
As mentioned above, we intend to apply this policy, when finalized,
in considering exclusions from critical habitat designations. The
general policy reserves much discretion that will be applied by the
agencies in particular designations, and in each we are required to
comply with various
[[Page 27058]]
Executive Orders and statutes for those individual rulemakings. Below
we discuss compliance with several Executive Orders and statutes as
they pertain to this draft policy.
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this is a
significant rule.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that our regulatory system must be based on the best available science
and that the rulemaking process must allow for public participation and
an open exchange of ideas. We have developed this policy in a manner
consistent with these requirements.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(a) We find this draft policy would not ``significantly or
uniquely'' affect small governments. We have determined and certify
pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502, that this
policy would not impose a cost of $100 million or more in any given
year on local or State governments or private entities. Small
governments would not be affected because the draft policy would not
place additional requirements on any city, county, or other local
municipalities.
(b) This draft policy would not produce a Federal mandate on State,
local, or Tribal governments or the private sector of $100 million or
greater in any year; that is, it is not a ``significant regulatory
action''' under the Unfunded Mandates Reform Act. This policy would
impose no obligations on State, local, or tribal governments because
this draft policy is meant to complement the amendments to 50 CFR
424.19, and is intended to clarify expectations regarding critical
habitat and provide for a credible, predictable, and simplified
critical-habitat-exclusion process. The only entities directly affected
by this draft policy are the FWS and NMFS. As such, a Small Government
Agency Plan is not required.
Takings--Executive Order 12630
In accordance with Executive Order 12630, this draft policy would
not have significant takings implications. This draft policy would not
pertain to ``taking'' of private property interests, nor would it
directly affect private property. A takings implication assessment is
not required because this draft policy (1) would not effectively compel
a property owner to suffer a physical invasion of property and (2)
would not deny all economically beneficial or productive use of the
land or aquatic resources. This draft policy would substantially
advance a legitimate government interest (clarify expectations
regarding critical habitat and provide for a credible, predictable, and
simplified critical-habitat-exclusion process) and would not present a
barrier to all reasonable and expected beneficial use of private
property.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), this draft
policy does not have significant Federalism effects and a Federalism
assessment is not required. This draft policy pertains only to
exclusions from designations of critical habitat under section 4 of the
Act, and would not have substantial direct effects on the States, on
the relationship between the Federal Government and the States, or on
the distribution of power and responsibilities among the various levels
of government.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
this draft policy would not unduly burden the judicial system and meets
the requirements of sections 3(a) and 3(b)(2) of the Order. The
clarification of expectations regarding critical habitat and providing
a credible, predictable, and simplified critical-habitat-exclusion
process will make it easier for the public to understand our critical-
habitat-designation process, and thus should not significantly affect
or burden the judicial system.
Paperwork Reduction Act of 1995
This draft policy does not contain any new collections of
information that require approval by OMB under the Paperwork Reduction
Act (44 U.S.C. 3501 et seq.). This draft policy will not impose
recordkeeping or reporting requirements on State or local governments,
individuals, businesses, or organizations. An agency may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
National Environmental Policy Act (NEPA)
We are analyzing this draft policy in accordance with the criteria
of the National Environmental Policy Act (NEPA), the Department of the
Interior regulations on Implementation of the National Environmental
Policy Act (43 CFR 46.10-46.450), the Department of the Interior Manual
(516 DM 1-6 and 8), and National Oceanic and Atmospheric Administration
(NOAA) Administrative Order 216-6. We invite the public to comment on
the extent to which any of these proposed regulations may have a
significant impact on the human environment, or fall within one of the
categorical exclusions for actions that have no individual or
cumulative effect on the quality of the human environment. We will
complete our analysis, in compliance with NEPA, before finalizing this
draft policy.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175 ``Consultation and
Coordination with Indian Tribal Governments,'' and the Department of
the Interior Manual at 512 DM 2, and the Department of Commerce
American Indian and Alaska Native Policy (March 30, 1995), we have
considered possible effects on federally recognized Indian tribes and
have preliminarily determined that there are no potential adverse
effects of issuing this draft policy. Our intent with this draft policy
is to provide a consistent approach to the consideration of exclusion
of areas from critical habitat, including Tribal lands. This draft
policy does not establish a new irection, but does establish a
consistent approach and direction for the Services. We will continue to
work with Tribes as we finalize this draft policy and promulgate
individual critical habitat designations.
Energy Supply, Distribution, or Use
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies
[[Page 27059]]
to prepare Statements of Energy Effects when undertaking certain
actions. This draft policy, if made final, is not expected to
significantly affect energy supplies, distribution, or use. Therefore,
this action is not a significant energy action and no Statement of
Energy Effects is required.
Clarity of This Draft Policy
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule or policy we publish must:
a. Be logically organized;
b. Use the active voice to address readers directly;
c. Use clear language rather than jargon;
d. Be divided into short sections and sentences; and
e. Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise this draft policy, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.
Authors
The primary authors of this draft policy are the staff members of
the Endangered Species Program, U.S. Fish and Wildlife Service, 4401 N.
Fairfax Drive, Arlington, VA 22203, and the National Marine Fisheries
Service's Endangered Species Division, 1335 East-West Highway, Silver
Spring, MD 20910.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: April 28, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
Dated: April 28, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2014-10502 Filed 5-9-14; 8:45 am]
BILLING CODE 4310-55-P; 3510-22-P